Father desperate to take son home has lost faith in NZ's court system

Father frustrated NZ court will not enforce its own custody order, faces deportation. Photo / 123RF

A couple are in a global custody battle over their young son after the mother fled to New Zealand with the boy and is refusing to return him to his birth country where his dad lives.

The boy's father is becoming increasingly frustrated with the New Zealand court system because it will not enforce its own custody order that would see the boy returned home.

The father fears the long wait for the relocation hearing means he could be deported or run out of money before it is heard.

But the mother told the Herald it was in her son's best interests to stay in New Zealand and they had asked the Family Court to decide where their son should live since she and the boy's father couldn't agree.

The boy's parents, whose names or other identifying facts cannot be used to protect their son's privacy, entered a joint custody arrangement that turned into a mirror court order in 2017 at a court in a non-Hague convention country agreeing to shared custody in the country the boy was born and had been living in. The mirror court order was also registered and confirmed by the Family Court in Auckland in July 2017 by Judge David Burns and was also registered and confirmed as a mirror court order in the father's birth country.

In the custody arrangement, they also agreed the mother would travel with their son to New Zealand to see her sick father in July 2017 before returning the boy home so they could raise him together, court documents show.

But the mother breached the court order and did not return back home with the boy in September 2017.

Instead, just before she was due to leave New Zealand, she tried to get the order changed saying it was not safe for the boy to return to his home country and that the boy's father had abused them.

During a hearing last year she told Judge Burns she had not mentioned the abuse at the time the parenting order was made because she was so desperate to leave the country with the boy.

The allegations against the father were heard before the Family Court in Auckland in July last year and were not upheld.

"Therefore on her own evidence she has admitted misleading the court in [the child's birth country and where the father lives] and New Zealand. I therefore have to approach her evidence carefully," the ruling said.

"I am satisfied that no violence has occurred."

The judge found there was no risk to the child being with the father and instead found not having a relationship with his father was more likely to have along-term significant impact on the child.

But despite being cleared of any wrongdoing, the overseas father is no closer to getting his son back and is becoming increasingly frustrated with the Family Court for not enforcing its own ruling.

The mother said it was in her son's best interests to stay in NZ. Photo / 123RF

In a judgment dated 23 August 2018, the New Zealand court declined the father's request for a warrant that could be used to enforce the terms of the parenting order and allow the boy to be returned to his home country as ordered by the Auckland Family Court in July 2017. The judge did not believe he could issue a warrant to enforce a shared-care order without breaching a section of the Care of Children Act.

Judge Burns instead said the issue came down to relocation and whether the child should grow up in his birth country with his father or New Zealand with his mother. He urged the father to consent to the Family Court at Auckland to have jurisdiction so the matter could be moved forward, which he ultimately did.

The father told the Herald he had no faith in the New Zealand court system and would have never agreed for his son returning to New Zealand if he knew what he did now.

"A court order in New Zealand in the Family Court is not even worth the paper it is written on. And it's a court order that was internationally agreed by 10 lawyers in three countries on both sides. Three judges in three countries ratified it - it's the same order, they haven't even changed it. To me as a father, as a person, as a human being for that matter, I can't understand how a person cannot trust a court."

The boy's father has left his job in the country he had lived in for 25 years and where the boy was born and has been in New Zealand since November 2018 to spend time with his son and to hopefully speed up the court process as they waited for a date for the relocation hearing.

As of this week, he was still waiting on a date for the hearing and had been told it could be anywhere between August 2018 and March next year.

"I'm stuck here in New Zealand. Basically, I'm a hostage towards my son by the court because if I leave New Zealand who knows what my wife will do. She might take him to Napier, she might take him to the South Island... She can run away."

While in New Zealand the desperate father has been spending time with his son and taking him swimming, bike riding and to the beach. But he's worried the relocation hearing may not happen until after he leaves the country or is made bankrupt as the bills are mounting up.

"If I leave here I risk many things with [boy's name] ... If I leave here there's a very good chance that the psychological damage for [boy's name] will be irreversible... If I go he will see that it is like I'm abandoning him.

"Sincerely I don't know what to do because I need to go back for money - I need to go back to my job. Who can stay in a country for six months and wait without any timeline or date or anyone that can promise me what will be the outcome..."

"Basically by the 25th of July I will be deported and my son will stay without me. They are going to separate me from my son by immigration law because the Family Court cannot hurry up things and do something for two years."

The boy's father said he was desperate to be part of his child's life.

However, without remaining married to the boy's mother, he has received legal advice that he cannot stay in New Zealand permanently. If the boy is to have two parents, the mother would have to return to the place where the boy was born, something she can do with the support of the father.

But in a statement to the Herald, the boy's mother disagreed the boy should return overseas and believed New Zealand was the best place for her son.

She said the Family Court decision needed to focus on their son's best interests and she was relieved this was the focus of the current proceedings.

"[The boy's] father and I both love [boy's name] very much and we both want an outcome for [boy's name] that is best for him.

"Unfortunately we don't agree on what that outcome should be and for that reason we are having to ask the Family Court to make a determination as to what is in [the boy's] best interests."